Part 1: General consequential provision
526 As set out in the Withdrawal Agreement, the UK will stay closely aligned with the EU for the duration of the implementation period, from exit day until IP completion day. The Bill therefore makes provision for EU exit SIs, which deal with the UK’s withdrawal from the EU, to come into force by reference to IP completion day, so that domestic law does not diverge from EU law during the implementation period.
527 Paragraph 1(1) of this Schedule does this by ‘glossing’ (i.e. non-textually amending) the commencement date for provisions made before exit day under specified powers that are due to come into force on, immediately before or after exit day (such as ‘three months after exit day’). This gloss will provide that they come into force instead at the end of the implementation period, either immediately before, on, or after IP completion day (such as ‘three months after IP completion day’).
528 Paragraph 1(1)(a) provides that the deferral affects provisions made under sections 8(1), 23(1), 23(6), paragraph 1(2)(b) of Schedule 1, Part 1 of Schedule 2 and paragraph 1 or 7 of Schedule 4 of the EU (Withdrawal) Act 2018.
529 Paragraph 1(1)(b) provides that the deferral also affects provisions made under ‘any relevant enactment’. This is defined in paragraph 1(9) as any enactment specified in regulations made by an appropriate authority and means further powers under which EU exit SIs will be made can be included in the deferral.
530 The deferral will affect provisions made under an enactment as amended, including as extended or applied, by or under any other enactment, including any other provision in the same legislation. This will apply whether the enactment is specified in the Bill or by regulations, so under Paragraph 1(1)(a) or (b). For example, where a provision is made under section 8(1) of the EU (Withdrawal) Act 2018 as amended by paragraph 21 of Schedule 7 to that Act, this will be caught by the general rule.
531 The general rule will bite where the commencement date is exit day (or immediately before or after exit day, where it is by reference to exit day). Further, the general rule will apply where the commencement date relates to all or part of the subordinate legislation, whether this is the legislation made under the relevant enactment or any other subordinate legislation which it provides for. It will therefore apply to either:
a. the whole statutory instrument if the commencement date for the whole statutory instrument is exit day (or immediately before or at any time after exit day, where it is by reference to exit day);
b. particular provisions of the statutory instrument if there are different commencement dates for different provisions, with some entering into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day), and others entering into force on a different date; or
c. none of the statutory instrument if none of the provisions of the statutory instrument come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day).
532 As such, the general rule will not affect provisions in statutory instruments that do not come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day). Further, whilst the general rule will bite on references to exit day ‘however expressed’, it will not bite on provisions which happen to fall on that day and/or time.
533 Paragraph (2) allows subordinate legislation to expressly disapply this gloss where required. This means regulations requiring exception that are laid alongside the Bill can specifically provide for this.
534 Paragraph (3) contains the power for an appropriate authority to specify an enactment as a relevant enactment for the purposes of sub-paragraph (1), i.e. to extend the gloss of ‘exit day’ to ‘IP completion day’ to commencement of subordinate legislation made using further powers. An appropriate authority is defined in paragraph 1(8) as a Minister of the Crown, a devolved authority, or a Minister of the Crown acting jointly with a devolved authority. This is necessary in cases where departments or devolved authorities have made EU exit SIs under powers other than those listed in sub-paragraph (1). Paragraph (4) makes technical clarifications about the extent of what the power at paragraph 1(3) may be used for.
535 Sub-paragraph 1(5) contains a power for an appropriate authority (as defined in sub-paragraph 1(8)) to make exceptions to the mass deferral, by disapplying or making different provision from the mass deferral in particular cases. For example, a Minister of the Crown, devolved authority or Minister of the Crown acting jointly with a devolved authority could exempt a statutory instrument fixing a deficiency under section 8(1) of the EU (Withdrawal) Act 2018 from the mass deferral, to provide that it will still come into force on exit day, where this is deemed appropriate.
536 Sub-paragraph (6) refers the user to paragraphs 2 and 3 of this Schedule for further provision about the power of devolved authorities to make regulations under sub-paragraph 1(3) and (5).
537 Sub-paragraph (7) sunsets the use of the powers in sub-paragraphs 1(3) and (5) at one year after IP completion day, defined as 31 December 2020 in clause 37.
538 Sub-paragraph (8) defines ‘appropriate authority’ as a Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority.
539 Sub-paragraph (9) defines ‘relevant enactment’ as an enactment specified by the power to specify such enactments contained in sub-paragraph 1(3).
540 Paragraph 2 provides that a devolved authority acting alone under the power contained in sub-paragraph 1(3) may only specify enactments so far as that enactment permits the making of subordinate legislation by a devolved authority acting alone, or by another person in circumstances in which the devolved authority is also permitted to make that subordinate legislation acting alone. Sub-paragraph 2(2) provides that any requirement for consultation or consent with a Minister of the Crown under the enactment to be specified, which would be applicable to the making of subordinate legislation producing the same result as that produced by the specification, is also applicable to making regulations to specify the enactment.
541 Paragraph 3 provides that a devolved authority acting alone under the power in paragraph 1(5) may not make provision in respect of regulations under the powers specified in paragraph 1(1)(a), or under powers in any relevant enactment, where the result is not a result which they could have produced acting alone under those powers. In certain cases where the result produced would otherwise have required the consent of a Minister of the Crown, or required the provision to be made by a Minister of the Crown and a devolved authority jointly, such consent or joint exercise is also required under the power in paragraph 1(5). In all other cases, a devolved authority may not make provision under paragraph 1(5) unless they have consulted a Minister of the Crown.
542 Paragraph 4 makes the same provision as paragraph 1 but for primary legislation made by devolved authorities in preparation for exit day under the provisions in paragraph 41(3) to (5) of Schedule 8 to the EU (Withdrawal) Act 2018. Those provisions were commenced after the Supreme Court judgment in 'The UK Withdrawal From the European Union (Legal Continuity)(Scotland) Bill' reference, which decided that the Scottish Parliament had competence to legislate in preparation for EU exit because the requirement to legislate compatibly with EU law would cease on a specific date. The provisions in this Bill include the gloss of ‘exit day’ to ‘IP completion day’; the power to disapply or make different provision to the deferral; as well as the power to make appropriate provision, including re-stating the commencement date of such an enactment. Subparagraphs (3) to (6) clarify that these powers can modify provisions in primary legislation as well as secondary legislation and that devolved authorities cannot use it outside of legislative competence.
543 Paragraph 5(1) clarifies that the consequential power in section 23(1) of the EU (Withdrawal) Act 2018 is capable of making consequential provision on the Act as amended (or to be amended) by or under the Bill. Further, it clarifies that references in the EU (Withdrawal) Act 2018 to the consequential power are read accordingly. Subparagraph (2) clarifies that subparagraph (1) does not limit the scope of the consequential power in clause 39(1) of this Bill. Subparagraph (3) clarifies that this includes amendments to provisions of EUWA which make amendments to other legislation.